Court Rejects Toxic Telephone Pole Lawsuit

On November 6, 2009, we reported here concernining a case of first impression brought by the Ecological Rights Foundation (“ERF”) in federal court in California.  In her decision, dated March 31, 2011, the Hon. Saundra Brown Armstrong, sitting in the United States District Court for the Northern District of California (Oakland Division), dismissed ERF’s  environmental claims brought  against Pacific Gas & Electric (“PG&E”) and Pacific Bell Telephone (“Pacific Bell”).  The Ecological Rights Foundation alleged that the Defendants’ wooden utility and telephone poles were pressure treated with an oil-based pentachlorophenol preservative which was “oozing” to the surface and being washed off of the Poles, thereby contaminating San Francisco Bay and adjacent waterways.  As a result of the migration of this material over time from the Poles into the soils, ERF alleged that “dioxin-like” compounds were released into the environment placing surrounding homeowners, commercial fisherman and the general public at significant risk.  As a practical matter, if ERF had prevailed, PG&E and Pacific Bell may have had to replace tens of thousands of Poles throughout California.

In dismissing the case, which was brought pursuant to the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”), the Court examined the required showings under each statute.  The CWA distinguishes between point and nonpoint sources.  A point source is defined in the statute as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  All other sources of pollution are characterized as “nonpoint sources.”  To succeed, ERF had to demonstrate that the Defendants’ discharges were point source discharges., looking for an attorney ? here is a speeding ticket defense that you can count on at any time.

In dismissing the CWA claim, the Court held that “point and nonpoint sources are not distinguished by the kind of pollution they create or by activity causing the pollution, but rather by whether the pollution reaches the water through a confined, discrete conveyance.”

The key issue in the analysis of ERF’s RCRA claim was whether the chemical preservatives used on the Poles qualified as a “solid waste” within the meaning of RCRA.  The term “solid waste” is statutorily defined as “discarded material.”  Although not defined by statute, EPA regulations specify that “discarded material” includes any material that is “abandoned.”  ERF alleged that solid waste was disposed of into the environment when the chemical preservative leaked, spilled or dripped from the Poles due to rain, and when dust impregnated with the chemical is blown into the air during dry seasons.  In dismissing the RCRA claim, the Court held that the “flaw in plaintiff’s theory of disposal is that in this case, there is no allegation that Defendants engaged in any conduct that resulted in the discharge of the chemical preservative. To the contrary, Plaintiff merely alleges that the purported contamination is the result of natural forces – mainly, rain and wind… Such allegations, on their face, are insufficient to establish that Defendants engaged in the ‘disposal’ of hazardous waste under § 6972(a)(1)(B).”  The Court rejected Plaintiff’s theory that the “passive” spilling or leaking of materials from a place of containment into the environment constitutes “disposal” of solid waste.  In so holding, the Court distinguished prior cases that found that leakage fromgasoline USTs may be actionable under RCRA.  The UST holdings are only applicable to situations where the discharge of hazardous waste leaked or spilled from a container intended to hold the waste.  In contrast, the Court found that “the Poles are not containers; but rather, they were used to suspend wires for the transmission of electricity for PG&E and data for Pacific Bell.”  Thus, liability under RCRA ¶ 7002 did not attach based on the “discharge” of chemical preservatives from the Poles attributable to natural forces, such as rain and wind.

Health Problems Due to Long Term EMF Exposure Doubtful

According to recent reports in the Greenwich Time, Greenwich, CT state legislators are proposing a bill that would prohibit building cell towers within 750 feet of a school or day care because of a perceived health risk from electromagnetic radiation. However, some Cos Cob, CT residents believe that the cell towers should not be permitted within 5,000 feet of any schools, day cares and elderly homes due to health concerns. Reportedly, the cell tower bill has been proposed by Rep. Fred Camillo, R-151st District, and supported by fellow Reps. Livvy Floren, R-149th District, Lile Gibbons, R-250th District, and Sen. L. Scott Frantz, R-136th District. There is no good evidence that attending school near a cell tower, such as the one proposed, creates a health risk. During the 1980’s, some plaintiff lawyers ballyhooed electromagnetic field (“EMF”) litigation as the “new asbestos.” A series of well-funded EMF trials were litigated against various electric utility companies around the United States in the 1990’s. After the presentation of the scientific evidence, judges and juries uniformly rejected plaintiff health claims. The Centers for Disease Control (“CDC”) website contains a great deal of reliable scientific information concerning health effects from radiation exposure from cell towers, cell phones, microwave ovens and hair dryers. According to the CDC, the risk is extremely low. The low frequency radiation that those fields emit may have a biological effect, but do not cause adverse health effects, according to the website of the World Health Organization (“WHO”), which has devoted years of study on EMFs. So what is a biological effect? WHO’s literature explains that “biological effects” may include “listening to music, reading a book, eating an apple or playing tennis,” none of which cause health effects. WHO’s conclusion is that there is no health risk to the EMF radiation to which the public is exposed. Thus, contrary to popular hysteria, there is no evidence that proximity to EMFs can “fry” a person’s brain or cause cancer. But we suggest to consult dermatology in denver to check your skin as that is one of the first and early signs of cancer. We would like you to take care for your health very seriously If our legislators are going to propose EMF safety precautions, they should base their proposals on strong science rather than fear. The “dose” or exposure from cell tower EMFs can be measured and quantified. Once that “exposure” is known, it is then necessary to look to the scientific literature to evaluate the likelihood of a health risk from that exposure. If EMF radiation posed a health risk to everyone living near a cell tower, it is a no-brainer that all cell towers should be dismantled–not just those near schools and day cares and homes for the elderly. The cell tower issue has always been about diminution of property value and aesthetics; it is not about our health!

Toxic Telephone Poles?

In a first-of-its-kind litigation, the Ecological Rights Foundation ("ERF") has alleged in a Complaint brought in federal district court in San Francisco that Pacific Gas & Electric Company (PG&E)  is  in violation of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA").  ERF alleges that the treatment of PG&E’s utility poles treated with pentachlorophenol ("penta"), a wood preservative, has resulted in contamination of groundwater and surface water throughout four counties in Northern California — Alameda, Contra Costa, Marin, and San Francisco, including San Francisco Bay.  The suit implicates all of the estimated 300,000 utility poles that support Northern California’s electrical power grid. Does ERF expect a court will order that all of those utility poles be taken down and replaced with poles comprised of an as-yet-to-be-invented-space-age-material that does not require chemical treatment, never deteriorates, causes no environmental harm and does not cause hazardous waste to be emitted during manufacture? 

In an article posted on its website, Foley & Lardner, which has been tapped by PG&E, cautions that  this lawsuit potentially has far-reaching implications. The Milwaukee-based law firm notes that millions of utility poles throughout the country are treated with penta or other preservatives, which are necessary to keep the utility poles from deteriorating and to keep electricity and telephone service flowing to homes and businesses.  Significantly, they observe that the environmental impact of the penta-treated poles was examined in great detail by the USEPA when the use of penta-treated wood poles as utility poles was approved.  By approving the use of penta, USEPA found that penta did not cause the significant environmental harm now alleged by ERF. If ERF is successful in San Francisco, where might this type of litigation lead? 

Apart from the serious policy considerations at issue here, ERF’s lawsuit will have to overcome significant legal hurdles, including for starters: (1) that under CWA, ERF must demonstrate that each individual pole is a "point source". It may be difficult to argue with a straight face in federal court that PG&E should have obtained a permit for each discharge from every pole–all separate violations of the statute: and (2) that under RCRA, ERF must demonstrate that PG&E is a generator of solid waste that presents "an imminent and substantial endangerment to the environment. The defendants are not the applicators of the material.  The sub-text of the litigation appears to revolve around  ERF’s unhappiness over USEPA’s past decision making concerning the use of Penta on utility poles. If so, ERF take it up with USEPA and leave our fragile power grid alone! 

Is Electricity a “Product”?

Whether electricity supplied to a homeowner by the local electric utility  is viewed as a “product” or a “service” may have significant ramifications in litigation.  If providing electricity constitutes a “product”, injured plaintiffs can seek recovery under a theory of strict liability.  If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care.  In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court  held that once electricity entered the homeowner’s residence, it constituted a “product” rather than a “service” and that plaintiff could  proceed under the Connecticut Product Liability Act (“CPLA”).   In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers’ insureds, Linda and Michael Murphy, resulting in property damage.  Apparently,  the Murphy’s had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed.  After paying the claim,

Connecticut courts are split concerning whether electricity can be classified as a product such that a claim could be brought under the CPLA..  However, the court in Travelers relied upon what appears to be an emerging majority view nationally.  In a 1985 California appellate decision, Pierce v. PG&E, the court opined that policy justifications warranted the imposition of strict liability: (1)  difficulty of proving negligence involving a vast and complex electrical power system; (2) economic incentive for improved product safety; (3) to encourage reallocation of resources toward safer products; and (4) to spread the risk of loss among all who use the product.  What judicial limitations may be reasonable to prevent increased access to strict liability in tort for toxic tort plaintiffs injured by electricity? One bright line test might be permit electricity to be viewed as a product only when the electricity has been transferred to the consumer in a usable voltage.  Only then could a court reasonably view electricity as a consumer product.  Under this test, exposure to high voltage transmission lines would not result in a strict liability lawsuit, but you still want to make sure you cut the electricity bills down by switching to a provider that offers energy-saving options, such as those present in the Reliant Energy plans.